Heather Cox Richardson

One hundred and sixty years ago, on December 26, 1862, in the largest mass execution in American history, the U.S. government hanged 38 Santee men for their actions in Minnesota’s so-called Dakota War.

The struggle did not involve all of the Santees, but rather those driven to war in August 1862 after the U.S. government, financially strapped by the Civil War, did not appropriate the money necessary to pay for the food promised to the Santees by treaty. Nine years before, in 1851, settlers had poured into the territory demanding land to farm, and the government had forced the Santees onto a reservation too small to feed their people. The government promised the Santees provisions to make up for the loss of their economic base not as a one-time payment but as a fifty-year contract. Then, when Minnesota became a state in 1858, its leaders took even more Santee land.

But by summer 1862, the Civil War had drained the Treasury, and so-called Indian appropriations fell behind.

Starving and unable to provide for themselves on the small reservation onto which they had been corralled, some Santees demanded the provisions for which they had exchanged their lands. At least one of the agents who had contracted to provide that food had some on hand but refused to hand it over until he had been paid. Furious, young Santee men considered their agreement broken and attacked the settlers who had built homes on the land the Santees had ceded.

On August 17, four young Santee men killed five settlers, and violence escalated. By September, both Minnesota militia and U.S. Army regiments were battling the Santees, and the struggles would leave more than 600 settlers, at least 100 to 300 Santees, and more than a hundred soldiers dead before the last of the Santee warriors surrendered to the military at the end of the month. Another 300 Santees—at least—would die from conditions of their imprisonment after the war or from exposure as they fled the state.

The timing of the military action meant that northerners, and especially Minnesota settlers, interpreted the Santees’ actions as an existential threat to the nation. The war was going poorly for the United States in summer 1862, and many northerners saw the Santees’ attempt to reclaim their land as part of a plan to destroy the United States from within in order to help the Confederacy. Rather than understanding that their neighbors were starving and desperate for the enforcement of a contract into which they had been forced, settlers turned on the Santees with fury. Even as northerners were redefining Black Americans as potential equals, they redefined Santees as unredeemable enemies and fantasized about exterminating them.

By September 23, most of those Santees involved in the fighting had either surrendered or fled, and on September 27, Colonel Henry Hastings Sibley, who had commanded the state militia troops engaged in the war, ordered a military commission to try those fighters now in custody.

Over the course of five weeks in the fall of 1862, a military commission tried 393 Santees for their part in the conflict. The prisoners did not have lawyers, and many of them did not speak English. Those who did understand the questions put to them did not understand the legal process that permitted them to avoid self-incrimination; they told the truth about their part in the fighting and thus cemented their convictions. Many of the trials took fewer than ten minutes before the judges reached a guilty verdict: in one two-day span, 82 men were tried.

In early November the commission convicted 303 Indians of murder or rape and sentenced them to death. Minnesota governor Alexander Ramsey wrote to President Abraham Lincoln, expressing his hope that “the execution of every Sioux Indian condemned by the military court will be at once ordered.” But by law, the president had to sign off on executions, and Lincoln refused.

While the harsh sentences pleased the furious Minnesota settlers, they presented a problem for Lincoln. Personally, he was reluctant to use the government to execute men and frequently commuted death sentences for soldiers convicted of anything other than rape or murder. He recoiled from the idea of executing several hundred men at once, especially since he had little faith in military tribunals, and the Santee trials were obviously predetermined.

But there was a national, as well as a personal, issue at stake. Lincoln’s primary focus was not on the troubles in Minnesota, but on the successful prosecution of the Civil War. If the United States executed captured Indigenous fighters for killing soldiers in battle, why shouldn’t it do the same to captured Confederate soldiers, who were also attacking the government?

While there were plenty of people who were willing to follow that logic, it presented a problem: if the Union government could do whatever it wanted to enemy combatants who surrendered, what was to stop the Confederacy from doing whatever it wanted to surrendering Union soldiers? Ultimately, Lincoln’s decision about what to do with the Santee prisoners could determine the fate of the Union men who fell into enemy hands.

Lincoln negotiated the crisis by distinguishing between soldiers in battle and war criminals. First he demanded to see the Santee trial records and ordered the military judges to separate men who had fought in battles from those who had committed murder or rape against civilians. Then he reviewed the records and concluded that 265 of the Santee had been convicted only of going to war against the United States. Although these men had not been party to a formal declaration of war, the Lincoln administration decided they were nonetheless covered by the traditional rules of war that prohibited the execution of prisoners. Lincoln refused to sign off on their executions, effectively pardoning them.

The 38 Indigenous Americans who had been convicted of murder or of rape against civilians, though, fell outside the traditional protections accorded to enemy combatants. Their sentences stood.

And so, on December 26, 1862, the U.S. government hanged these 38 men in a group from a scaffold in Mankato, Minnesota, in what is still the largest mass execution in American history.

In the aftermath of the hangings, the Lincoln administration continued to develop the concept of war crimes. On April 24, 1863, the administration issued what became known as the Lieber Code after its author, legal philosopher Francis Lieber. It tried to establish rules for wartime, prohibiting the execution of prisoners of war, for example, and outlawing rape and torture. The Lieber Code helped to make up the international Hague Conventions of the turn of the century, which set out to establish rules of war.

But northerners’ interpretation of the Dakota War had made them push Indigenous Americans outside those rules, and once that principle was in motion, it did not stop. In 1862, northerners supported a mass execution of Santees despite the obviously biased convictions; in 1864, after skirmishes between settlers and Navajos, army officers forced the Navajo people to walk hundreds of miles from their homelands in Arizona to internment at a military fort in eastern New Mexico where a lack of food and shelter led to horrific death rates.

And later that year, at the Sand Creek Massacre in Colorado Territory, soldiers would butcher surrendering Cheyennes and Arapahos and take their body parts as trophies.